Monday, 11 January 2016

The Dissolution of a Marriage Contract: A Way Out for Oppressed Women

A translation of this fatwa from Naseem al-Sham


Dr Muḥammad Tawfīq al-Būṭī, as-Salām ʿalaykum wa Raḥmatullāhi wa Barakātuh:

A woman, along with her husband’s father and mother, consulted me. She said that her husband was in prison for some years. After being in prison for three years he committed another crime and as a result he was given a life sentence. It has now been three years since that ruling which means that her husband has been absent for six years, in prison. Now she is asking for the marriage to be dissolved (faskh)[1] and her husband’s parents are also asking for it, saying that she is a young lady and they don’t want her to suffer. In Shāfiʿī fiqh, is there a way to do this? What would the ruling be for her in the other madhhabs? May Allah bless you. If you are able to given us an answer today, please do so.

This woman and those like here have a way out in the Revealed Law by which they can get out of this problem, and it is to make the case that they have to ask for expenditure (nafaqah) because there is no provider (munfiq), which is the husband, strictly speaking.

She can present her case to the judge (qāī) and ask for a separation (tafrīq) due to the lack of expenditure, even if she is wealthy. Even if her husband’s family take it upon themselves to provide for her, she is not obligated to accept it, because the one who is legally responsible for her expenditure is her husband, and he’s not there.

There is another way, which is to make the case that one is suffering harm,[2] but that would require a study, and therefore I think the first illustration is better and easier.

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[1] (tn): i.e. to nullify the marriage contract completely; this is different from divorce in that a divorce is only final if it is tripartite (al-baynūnah al-kubrā). Please see v.8, p.336-343 of Imam Wahbah az-Zuḥaylī’s Mawsūʿah al-Fiqh al-Islāmī wa Qaḍāyā Muʿāṣirah (Damascus: Dār al-Fikr, 2013) for further details.
[2] (tn): This shows that in addition to the case of not being provided for, a woman can also make the case that she is suffering harm in her marriage. A qāī has the authority to dissolve the marriage in such cases. However, when unqualified individuals appoint themselves as judges, believing women can suffer immeasurable harm, and this is due to not only the stunning lack of knowledge of these so-called judges but also their cultural prejudices, and Allah knows best.

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